Bigamy referral to the Public Prosecutor by the Family Court
- The parties married in mid 2017. The wife’s marriage to Mr D was dissolved by court order on 22 October 2017.
- The wife seeks a decree of nullity on the basis that at the time of her marriage to the husband in mid 2017 she was still married to Mr D.
- The husband appeared at the hearing but was not represented.
- He did not oppose the application for a decree of nullity. The matter was stood down to enable the husband to read the wife’s application and affidavit, and seek assistance from the duty solicitor if he elected to do so. A subsequent offer of advice was made to the husband by a visiting Senior Counsel involved in another matter before the Court. The husband did not seek that the proceedings be adjourned or that he have an opportunity to file an answering affidavit. He accepts the accuracy of the matters as expressed by the wife in her affidavit and joins with her in seeking a decree of nullity.
- It was apparent that the husband considered the wife’s solicitor to have represented both of them.
- The proposition was initially rejected by the wife’s solicitor who sought to minimise his involvement with the husband by conceding that the husband had attended with the wife but that the solicitor did not consider that he represented the husband.
- The submissions of the wife’s solicitor were unconvincing. It was also apparent that the wife’s solicitor’s experience is predominantly in migration law and his involvement with the parties seemed to be concerned with an application for the parties to secure a visa that will enable each of them to remain in Australia.
- Whilst not made clear in the wife’s affidavit, the submissions of her solicitor suggest that the application brought by her is a necessary precursor to the intended visa application.
- I was left with the distinct impression that the application for a decree of nullity was ancillary to other applications filed and pending pursuant to the Migration Act 1958 (Cth).
- Annexure “D” to the wife’s affidavit is a copy of the Certificate of Marriage confirming that the marriage between the parties was solemnised in mid 2017 at F Street, Suburb B according to “Civil Rites”.
- The place of residence of the parties as expressed on the certificate was the same and in terms of their separate conjugal status the certificate reflects that each of the parties were “Never Validly Married”.
- Whilst it may have accurately described the husband’s marital status, it did not apply to the wife. It is central to her application that at all material times she was married to Mr D and was aware that the marriage remained intact until the divorce order was made on 22 October 2017.
- In submissions, the wife’s solicitor conceded that it was likely the Notice of Intended Marriage pursuant to reg 38 of the Marriage Regulations 1963 (Cth) also listed the conjugal status of each of the parties as “Never Validly Married”.
- There is no suggestion in the wife’s affidavit that the marriage celebrant who solemnised the marriage was aware or had been told of the wife’s marital status, that at the time of the marriage to the husband she was still validly married to Mr D and that the issue of the first marriage had been raised with the Department of Immigration and Border Protection and was the subject of a pending application for dissolution.
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Queensland/Sunshine Coast/Brisbane/Gold Coast